Many many years ago I bought a box of reel-to-reel tapes from a yard sale, and promptly forgot about them. A few weeks ago I was looking through them before throwing out the box. They included some unreleased tracks and demos from a music star (the tapes are from the early 1950s) before they became a huge success and Hall-of-Famer. I *think* these used to belong to a sound engineer of a small record label, which was later swallowed by a large label as far as I can tell. My question is, would the tapes belong to the current record company, the artists estate, finder's keepers, or what?
The tapes themselves belong to you, I think. When you bought them you took whatever title the seller had, and assuming they belonged to the seller, they now belong to you.
HOWEVER that doesn't mean you own the copyright or that you can make copies of what's on the tapes and sell them. Very likely such action would constitute copyright infringement both of the public performance rights and of the musical compositions on the tapes. I suppose if you were to digitize them for your personal use ONLY (i.e., to play on your personal listening equipment) that would probably constitute "fair use" which is a defense to a claim for copyright infringement.
If you type the artist's name, and the names of the pieces on the tape, into the databases for ASCAP, BMI and SESAC, which are the major performing rights organizations, you can find out more about the ownership of the works on the tape. If you want to do anything other than listen to the tapes you have, i.e., if you want to publish or sell this material, you will likely need the permission of the entities which hold the copyrights.
Not legal advice as I don't practice law in California or hold California licensure. It's just my two cents on the facts you describe in light of general principles of the law of copyright. If you need legal advice, please consult a lawyer who holds California licensure. I practice in Vermont ONLY.
Unfortunately finders keepers does not apply to intellectual property. Although you may be entitled to ownership of the physical reel and personal listening enjoyment, you may not necessarily have the right to commercially exploit the recordings and compositions embeded on the reel. You should consult with an entertainer attorney. Depending on the artist the value of the actual reel may be substantial depending on the artist.
As the prior answers indicate, you may be the rightful owner of the physical tapes (if the person you bought them from was, in fact, the rightful owner and not just in possession of someone else's tapes). However, for each song, there are two sets of copyright issues (arising from the song compositions and the sound recordings) that need to be considered, as well as right of publicity and privacy issues that could affect your right to sell copies of the recordings and/or make the recordings publicly available.
Please note that since these are pre-1972 sound recordings, both the law affecting the sound recordings as well as the law regarding the artist's (and possibly the producer's, engineer's and other musicians') rights relating to publicity and privacy (if any) will be governed by state vs. federal law. So, knowing more about WHO was involved in the recordings (e.g., producing, engineering, playing and singing), HOW the parties involved were compensated for their time, WHERE the songs were recorded and WHERE the parties involved currently reside and/or resided at death will be important.
If you want to do anything other than to donate the tapes to a music library or other archive, I would strongly encourage you to consult with an entertainment attorney (many of us offer free consultations) to help you sort out your rights and put together a strategy for the possible marketing/licensing the recordings.
I fully agree that you MAY own the physical tapes but NOT the copyrighted material on the tapes.
HOWEVER, the origin of the tapes is a question. There are many original master tapes floating around and the original owner is usually one of 3 persons/entities: 1) the record company who contracted the artist; or 2) the artist who paid for the tapes; or 3) the studio that mortgaged the tapes based on unpaid fees by the record company or artist. Sometimes, the studio was charged with holding "safety copies" (secondary archives) for the record company or artist and then went out of business or forgot to pay their storage bill and lost the tapes at auction. In that case, the owner is still the entity who paid the recording studio for the tapes (unless a contract says otherwise).
So if the question is, "can the true owner come and demand the physical tapes back?" That depends on how the yard sale proprietor got them. Do you have a chain of title for the tapes? Did you purchase them legally and did they come through a chain of legal sales?
A side note on one of the other attorney's advice regarding making a copy of the tapes for personal use being "legal" based on fair use law. There is no established law on that. These are not consumer copies, they are original master tapes. So whether or not making a personal copy is legal is not something that the law has really answered. However, it is obviously much less of a concern than if you were asking whether you could sell the compositions or the performances contained on the tapes- that is clearly illegal.
You have the right to the physical tapes and can even resell them under the 1st Sale Doctrine provided that you do not violate any existing trademarks in connection with such sales. However, the underlying copyright of the music on these tapes is a little trickier, because the ownership answer is not 100% clear. The underlying copyright in the music on the tapes is likely subject to the Copyright Act of 1909 due to the date when the tapes were created. The 1909 Act had different notice and formality requirements than the current Copyright Act of 1976. If the original owner did not properly follow the registration formalities in the 1909 Act then it is possible that the music is in the public domain. Sound recordings also did not get federal copyright protection until 1972, so federal law is not really applicable and the applicable law of the State where these tapes were recorded will apply. You will need to retain counsel to do a copyright search to determine the copyright ownership of the tapes.
The tapes may or may not have considerable value....it will depend on the material, the artist, the physical condition of the tapes, whether there is very similar material for the artist already in the market place, and various other factors.
I agree with the comments above in regards to analyzing what you have and the ownership, and putting together a marketing strategy. You would want to be very careful, though, about assuming that what you have is unreleased material, unless you've already investigated that carefully.
As far as marketing the material, it's going to depend a lot of who the various rights holders are (label, publishers et al.). Also finding out whether there is an active estate administrator for the artist. Various labels and publishers tend to have their own individual corporate cultures and personalities, and you'll be able to know more how complicated it might be, once you find out who the label and publishers are.
Sometimes the rights clearance issues in situations like this can get extremely complicated. I've had situations in the past in which we decided to 'cherry pick' the material in order to reduce the amount of material that needed to be cleared, and then put together a deal to market selected material for synch licensing, once all the rights were cleared. Again, though, it will depend on exactly what material you have, and the other specifics regarding the tapes.
First, congratulations on your find! Its always fun to come across "little treasures" like that.
You pose an excellent question about ownership of the tapes, but I suspect what you really want to know is what you can DO with them.
Your situation is quite like when you buy a CD at the store – you own that CD, but you don’t own the copyrights to the material contained on the CD. Thus, you can’t go out and do things like sell copies of the CD or license the songs for use in commercials.
Assuming that the tapes legally belonged to the seller, they are now yours to listen to and enjoy. However, as previously stated, the actual physical tapes and the intellectual property contained on them (the unreleased tracks and demos) are two different things. Further, there are two types of copyrights involved here – the copyright for each song composition, and the copyright for the particular sound recording of each composition.
Depending on who the artist is, you may have something of substantial value on your hands. My best guess (based on your use of the words “Music star” and “Hall-of-Famer”) is that it would be worthwhile to have an experienced entertainment or intellectual property attorney evaluate what you have and what you can DO with the tapes (other than just listen to them and enjoy them yourself).
Paul J. Sieg
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